En banc 9th Circuit OKs DNA testing of arrestees, retention of results from those not convicted

An en banc panel of a federal appeals court gave short shrift Thursday to an argument from the American Civil Liberties Union of Northern California that a state DNA database should not include test results from felony arrestees who were never convicted.

In a four-paragraph unsigned order an 11-judge panel of the 9th U.S. Circuit Court of Appeals said the state may continue its practice of collecting DNA and storing the test results indefinitely, even if the arrestees were never convicted of a crime, reports the Los Angeles Times (sub. req.).

The ruling follows a U.S. Supreme Court decision that DNA tests are equivalent ot fingerprints, concerning a similar arrestee testing program in Maryland. However, the ACLU argued that the Maryland program was less sweeping than California’s, because results from arrestees who aren’t convicted are automatically expunged.

California does allow those who aren’t convicted to seek expungement of their DNA tests, and the state attorney general’s office says 96 percent of such requests are granted, the newspaper reports. However, only a small number of arrestees ever apply.

“A tiny, tiny percentage of people who are arrested apply for expungement,” attorney Michael T. Risher of the ACLU told the newspaper. “They don’t know how to do it, and they don’t want to have to hire a lawyer to deal with it.”

He said about one third of the 300,000 people arrested annually in California on felony charges are not convicted, yet fewer than 100 people have applied for expungements.

The attorney general’s office did not respond to the newspaper’s request for confirmation of these numbers.